Wrongful termination cases involving sabotage are probably the most difficult to prove but also the most likely to result in massive, multi-million dollar damage awards, including an award of punitive damages. Sabotage can come in many forms - so many that a complete list of all the ways in which it can be achieved would be impossible to make. However, speaking generally, sabotage involves deliberate conduct designed to subvert, obstruct or destroy. Just a few examples of sabotage I have seen in my practice involve: 1) providing an employee with a work schedule and then disciplining the employee for not being at work on a date and time the schedule provided shows the employee was not scheduled to be at work; 2) issuing a "write up" to an employee for alleged misconduct on a particular date, and then altering the date after learning the employee was not at work on the date in question; and 3) putting obscene material on an employee's computer while the employee is away from the desk, and then getting a manager to go search the employee's computer for something else knowing the manager will spot the obscene material and take disciplinary action.

Another great example of sabotage can be found in the Oscar Award winning movie Philadelphia. In Philadelphia, actor Tom Hanks plays a lawyer with HIV/AIDS who is fired shortly after his condition begins to outwardly manifest itself through skin lesions. The law firm's stated reason for termination is failure to complete important legal paperwork by a certain deadline. In reality, Tom Hanks' character completes the paperwork by the deadline, but the law firm "loses" the paperwork to make it appear as if it had never been completed. The movie Philadelphia is loosely based on a true story.

With technological advances, sabotage is becoming easier to prove in some respects. Most computers store what is called "metadata", which includes information about computer-generated documents such as the date and time it was drafted or modified. In modern lawsuits, it is possible to discover metadata in order to show certain computer-generated documents were created or modified after-the-fact in an attempt to cover up the truth. Metadata can also be used to show certain computer-generated documents do exist or at one time existed, which can be especially powerful evidence where there is a dispute over the existence of those documents.

Despite these advances in technology, sabotage remains difficult to prove. Generally speaking, the word of one person against the word of another will not be enough to convince a judge or jury. The key to proving sabotage is documentation and witnesses. Where computers or other electronic devices are involved in the sabotage, a computer forensics expert is essential.

Sabotage comes in many forms. The one common denominator in sabotage is that the conduct, no matter what form it takes, is cruel and malicious. Accordingly, where the employee can prove sabotage, the employer faces massive liability.

If I had a dollar for every time I have asked a potential new client, “How are you going to prove motive?” I would be very rich. No matter what kind of case, motive is difficult to prove in law. Employment discrimination and wrongful termination cases are difficult to win because the employee must prove that the employer acted with a specific illegal motivation (i.e. the employee was fired because of his race, sex, national origin, etc.)

In California most employees are employed at-will, meaning employees can be terminated at any time for any reason and can resign at any time for any reason. There are only a handful of exceptions to the rule of employment at-will, such as illegal discrimination and retaliation. Importantly, discrimination and retaliation are the exceptions rather than the rule. This makes it relatively easy for an employer who acts with an illegal motive to provide a legitimate explanation as to why an adverse employment action was taken.

So, how do employees win discrimination, retaliation and wrongful termination cases? What kind of evidence is necessary to prevail? The answers depend on the claims asserted, the evidence, and several other factors.

An employer or manager will rarely admit it acted with illegal motives. Everybody knows that employment decisions cannot be based on race or sex. Everybody knows that an employee cannot be fired for reporting the employer to the government. Thus, employment discrimination, retaliation and wrongful termination cases often turn on circumstantial evidence. Generally, the more circumstantial evidence of discrimination, the stronger the case and the better the chances of prevailing.

Circumstantial evidence of illegal motive comes in many forms. For example, discrimination can be shown by evidence that other employees engaged in similar conduct but were not treated similarly. The classic example is where three employees, two men and a woman, frequently show up late. The woman is fired for excessive tardiness but the men are not even reprimanded.

Discrimination can also be proven through evidence that the employer’s stated reason is false. For instance, if a manager fires an employee because she saw the employee yelling at a customer, but the customer and employee both testify that the employee never yelled and was polite, then the employee may have a case. The logic is that, if the employer did not have an illegal motivation, then why would it fire somebody on false grounds? It is important to note, however, that falsity of the employer’s justification is, in and of itself, weak evidence of discrimination. The reason for this is that people may lie for all kinds of innocent reasons. The manager in the above example may have just wanted the employee fired because the employee was always questioning her authority, so she made up a story about the employee yelling at a customer because the employer’s policies permit a termination for yelling at customers but do not permit a termination for questioning a manager’s authority. In such a case, the real reason was not because of race, sex, or any other illegal ground, but because the manager was just looking for a way to get rid of somebody she believed was disrupting the workplace.

Another way to prove discrimination is when the company fails to follow its own policies concerning investigations into alleged misconduct. This reminds me of a case I had a while back where the employer claimed it fired the employee for harassing co-workers in violation of the company’s anti-harassment policy. Company policy required that any time an employee is accused of harassment, the employer was required to conduct a harassment investigation, including interviewing all witnesses. In that case, the company admitted it never conducted any such investigation. Like the example in the above paragraph, my client denied ever harassing anybody and the employee he allegedly harassed admitted she did not feel he had harassed her. So, the falsity of the employer’s stated reason, coupled with the failure to investigate pursuant to company policy, was, according to the court, enough evidence to conclude that unlawful discrimination was the real reason.

There are many other factors that go into evaluating a discrimination, retaliation and wrongful termination case. Some types of employment cases are generally easier to win than others. For example, whistleblower and retaliation cases are easier to win than discrimination cases. Sex discrimination cases are generally easier to win than race discrimination cases. There are various reasons for this and these statements are only generalizations because different judges and juries come to different results.

Most importantly however, above all else, my experience has been that despite the amount or strength of the evidence, employees who are honest, respectful, accountable and deserving are most likely to prevail. I would take a likeable employee with a long, unblemished employment history where the evidence is weak over a dishonest, greedy employee with ongoing performance problems where the evidence is strong any day. In order to prevail, a jury not only has to believe that you are owed compensation, but also that you deserve compensation.

Attorney Kevin Schwin’s client was charged with discriminating on the basis of disability. Mr. Schwin conducted a thorough investigation into the allegations of disability discrimination and obtained numerous statements from co-workers establishing the allegations made by the employee had no merit. The results of the investigation were submitted to the EEOC, along with a lengthy analysis of the case. The EEOC determined that there was no evidence of discrimination and dismissed the case.

Employers in California who do not pay their workers lawfully are exposed to even greater liability than they may think. In Phillips v. Gemini Moving Specialists, the employee filled a company truck with the wrong type of gasoline, and the employer had to pay $70 to tow the vehicle and, presumably, an additional amount to have the vehicle drained of gasoline and refueled. The employee agreed verbally to pay for half the towing expense ($35), but requested that the money not be deducted from his next paycheck, as his rent was coming due. The employer nevertheless deducted $93.75 from the employee’s next paycheck. The employee never gave the employer written authorization for the deduction. California law requires that the employer obtain written authorization to make such a deduction. The employee complained about the deduction and was terminated shortly thereafter.

If your employer provides an internal mechanism for reporting sexual harassment, you must take reasonable steps to report the harassment to your employer. Follow the following steps:

Review Your Employee Handbook and/or Collective Bargaining Agreement

Employers generally set forth procedures for internally reporting incidents of sexual harassment in the employee handbook and/or collective bargaining agreement. These procedures generally establish an "open door policy" whereby employees can report the harassment to a supervisor, a Human Resources Manager, or a neutral person such as an Ombudsman. Review these procedures carefully.

In a hotly litigated case, Kevin Schwin recently defended an individual who was sued for defamation and successfully obtained dismissal of the lawsuit under California’s Anti-SLAPP law. The Anti-SLAPP law, Cal. Code Civ. Proc. § 425.16, is designed to protect first amendment rights of free speech and petition. The law requires the defendant to show that s/he is being sued for conduct that comes within the protection of the first amendment. If this is shown, the burden shifts onto the plaintiff (the person bringing the suit) to show that there is a probability that the plaintiff will prevail on the merits of the suit. If a probability of prevailing on the merits is shown, then the case will proceed. Thus, a SLAPP suit, by definition, is one that lacks merit.

Employment discrimination cases generally differ from other kinds of cases. The reason for this is because employers, especially large employers, such as United Airlines, have nearly unlimited resources, while employees generally have very limited resources to pay for expensive litigation. In addition, employers do not take allegations of discrimination lightly; thus, it may be desirable for an employer to pay hundreds of thousands of dollars in costs and attorney’s fees to fight a discrimination case in order to be “vindicated” and absolved of liability. Employees who feel they have been discriminated against often desire vindication as well.

It would be impossible to list all the reasons employers get sued for wage and hours violations in a few short paragraphs. My intention is to summarize the main reasons employers get sued for wage and hours violations and provide general advice to employers on how to avoid costly suits. In my experience, there are three main reasons employers fail to follow the wage and hours laws: 1) lack of knowledge of the law; 2) lack of understanding of the law; and 3) financial motives.